441 Mass. 265 (March 19, 2004)

This case is a must read before handling the next defense motion seeking the production of records not in the Commonwealth's possession or control.

Under Rule 17(a)(2) of the Massachusetts Rules of Criminal Procedure, prior to trial, a defendant may seek the production of documents in the possession of a nonparty that he believes have a 'rational tendency to prove [or disprove] an issue in the case.' The SJC has now defined with greater specificity the showing of relevance necessary before a summons for the production of documentary evidence and objects may issue. Keep in mind that this step is separate from and precedes any of the steps under the Bishop/Fuller protocol, which only kicks in once a claim of privilege has been asserted.


A defendant who files a motion for documents to be produced before trial must establish:

  1. the documents are evidentiary and relevant;
  2. the documents cannot otherwise be reasonably procured in advance of trial;
  3. the defendant cannot properly prepare for trial without such production and inspection in advance of trial;
  4. the failure to obtain such inspection may tend unreasonably to delay the trial; and
  5. the request is made in good faith and is not intended as a general "fishing expedition."

Quality of the Affidavit:

In support of such a motion, the defendant must file an affidavit (that presumably addresses the five points above.) Under Mass. R. Crim. P. 13(a)(2) an affidavit must be signed by a person with personal knowledge of the facts relied upon in support of the motion. The SJC has now relaxed the personal knowledge requirement. An affidavit filed in support of a motion to summons documentary evidence under rule 17(a)(2) may now contain hearsay. "However, the affidavit must identify the source of the hearsay, the hearsay must be reliable, and the affidavit must establish with specificity the relevance of the requested documents."

In the present case, the defendant was indicted on aggravated rape and administering a drug with intent to enable sexual intercourse. Defense counsel filed a motion to inspect the records of several medical, psychiatric and social service providers relating to treatment the victim received. The motion was accompanied by an affidavit signed by the defense attorney, indicating that the defendant had knowledge that the victim abused drugs and alcohol, had received inpatient psychiatric care, had terminated numerous pregnancies, etc. The affidavit asserted that the records were likely to contain information relevant to issues regarding consent, the victims' state of mind, and motive to fabricate. Upon review, the SJC held that the affidavit did contain facts that were "in the personal knowledge of counsel's resources" and under the new relaxed rule that was sufficient.

*** This ruling does not extend to any other type of pretrial motions.***